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POSTED 8/19/08 UPDATED 9/18/2008
QUESTIONS TO THE STERLING BOARD OF SELECTMEN

                        STERLING SELECTMEN- FACTS AND QUESTIONS

The following is based on what was supplied in response to a Public Records Request (“PR”) for all records in this Town’s possession regarding the Nestle project, as well as the March 18, 2008 meeting at Chocksett School. All quotations are excerpts from those records. A copy of this document was delivered to each Selectman on August 17, 2008, with a request that they respond to these questions during their next Open Session meeting, scheduled for Wed., August 20, 2008.

By way of an update, the Selectmen did not respond to any of the questions at the August 20th meeting, and advised those present at their September 3rd Open Session meeting that they do not intend to answer any of these questions.

1. FACTS: The Selectmen held six (6) Executive Sessions (“ES”), and seven (7) Open Sessions (“OS”) in which the Nestle project was discussed.  Based on the requirements of the Open Meeting Law of Massachusetts, as confirmed by Assistant District Attorney David Tiberii of the Worcester District Court,  none of these Executive Sessions were held in accordance and compliance with those requirements.

            QUESTION: Massachusetts does not currently allow a court to impose a penalty on a Board or Commission that violates this Law. Instead, the taxpayer foots the bill for any penalties imposed for board members who skirt its requirements.  Did the Selectmen not know or understand that it was their responsibility to comply with these requirements?  Did you call  and  hold these Executive Sessions on the same bases you always use for any Executive Sessions, or were your practices any different as far as the Nestle project is concerned?

2. FACTS:  The Selectmen held ES meetings based on the “real estate” exemption of the Open Meeting Law, which permits discussions regarding “the purchase, exchange, lease or value of real property” to be held in ES, but only as to “… specific information which, if disclosed or discussed in Open Session, would have a detrimental effect on the negotiating position of the governmental body [Sterling] with a person, firm, or corporation .”

QUESTION: While certain of the Board’s ES included discussions regarding  information that could be detrimental to their negotiating position if disclosed to Nestle, other information discussed would not appear to be.. For example, “the number of pipelines needed, and the number of gallons that would be removed and permitted by the DEP” (7/11/07 ES); “the DEP tests”, the fact that Nestle “projected the yield to be about 240,000 gallons per day” (1/9/08 ES); and “the ramifications if residents’ wells go dry” (3/12/08 ES). Please explain why disclosing this information in Open Session would have had a “detrimental effect” on your negotiating position with Nestle, especially given the nature of the information,  and the fact  that some of this information originated from Nestle.

3. FACTS: 7/31/07 ES Meeting Minutes: The Board met with Nestle “to discuss the Nestle Corporation doing well testing in the Wekepeke area and the effects it has on Sterling.” Sterling’s outside legal counsel “brought everyone up to date on what was happening.” and said that “the town is cautious but supportive. He suggested there be a cooperative approach to ensure the town their concerns surrounding traffic, water/wells, rezoning etc. will be taken into consideration before the project goes forward.”

QUESTION: At the Selectmen’s meeting of March 18, 2008 (Chocksett School), a citizen asked “What meetings have you gentlemen had, either public or executive sessions, with Nestle?” All Selectmen said “None” and one of the Selectman chose to add that they “hadn’t met at all about this, but might tonight!” However, not only did you meet with Nestle in this ES, but  2 of the Selectmen attended and participated in at least one earlier open session of our Conservation Commission with Nestle, and a lengthy (3.2 hours) meeting was  held at the offices of  Nestlé’s  legal counsel with Sterling’s outside legal counsel; the records show that one of our Selectmen  participated. Please explain why you chose not to tell the truth about this.

QUESTION: It is well-established [e.g. Allen v. Bd. Of Selectmen of Belmont, 58 Mass. App. Ct. 715, 719-720 (2003)] that the real estate exemption (and the litigation exemption) cannot be used if the party with whom the governmental body is negotiating, is present. Since Nestle was present, please tell us on what other exemption you were relying, if any.  If no exemption applied, and especially since most of the information discussed appears to  have been presented later to the Town  in  Sept. 2007, why did the Selectmen want to hear it first, and behind closed doors? On what basis do you believe you were entitled to do this? 

QUESTION: Please explain why the Selectmen permitted  anyone to  represent  to  Nestle that “the town is cautious but supportive” about this project when in fact, the vast majority of this town knew nothing about it as of the date of this ES?  For what reason was this statement even made, and what did the Selectmen do to correct the  misrepresentation made to     Nestle?

4. FACTS: A draft (unsigned) copy of a Memorandum of Agreement (“MOA”), between the Selectmen and Nestle, was supplied in response to the PR. A senior town official said this draft was the only version that could be located. Two Selectmen provided conflicting information as to whether or not it had ever been signed, and by whom. This same senior town official said, however, that the MOA signed by Sterling had been destroyed, because Nestle never signed it.  The draft MOA calls for the following:

            QUESTION: If the MOA was indeed destroyed, why was it destroyed, and on what  bases do the Selectmen believe that such an action was permissible, advisable or appropriate?         

QUESTION: Since Nestle is a client of W&C, please explain why the Selectmen would consider having W&C perform such an evaluation for Sterling, much less rely  upon an evaluation based on Nestle’s own data, as opposed to grass roots data that was  generated   by an independent entity?

QUESTION: While Par. b (2) of the MOA is attractive financially, doesn’t it place all of the risk on Sterling? Doesn’t this provision really mean that whatever an  agreement or zoning amendment said, it would be interpreted to mean that  Nestle could do whatever [Nestle could prove] the Proposal envisioned, because that was the agreed  intent? Did the Selectmen  intend  to tell  the Town everything  the Proposal envisioned before any vote  on a  zoning amendment was taken? Please explain why the Selectmen ever considered this arrangement with Nestle.

5. FACTS: March 18, 2008 Meeting. Numerous citizens voiced their intentions to vote for/against a zoning amendment based, in part, on their understanding of the risks to the aquifer, wells etc. Sterling’s outside legal counsel said he “would expect Sterling to hire a very good hydro geologist, and assess whether he/she thinks it’s a good Proposal….If the hydro geologist stands up and says ‘yes, there’s a real possibility wells will go dry’, I want you to say it’s too big a risk. But if the hydro geologist is comfortable that few, if any or none will go dry, that’s different.” “Best possible result is if the hydro geologist guarantees it’s safe” “If our hydro geologist says there’s a chance your well will go dry, vote against it.” Counsel was asked later in that meeting if Sterling had its own hydro geologist, and he said it was W&C.

QUESTION: Why were the people of Sterling not told that W&C also represents Nestle, even though not on this project?  Since the Board agreed at the March 12, 2008 ES to sign the MOA, had it been signed by Sterling as of the 3/18/08 meeting?

6. FACTS:  On Jan.9, 2008, an ES was held by the Selectmen just prior to the OS at which Nestle made its 2nd presentation to the people of Sterling. The ES Minutes state that “Zoning issues were discussed. The group (all Selectmen and Sterling’s outside legal counsel were present) anticipated that if Nestle wants to proceed, their operation will require a zone change at Annual Town Meeting from Rural Residential and Farming to Commercial, or perhaps they would be able to apply for a special permit.”

The minutes of the OS meeting that immediately followed, state that a citizen of Sterling “asked the Board of Selectmen the reason for the [prior] Executive Session…” A Selectman answered that “it was a legal issue regarding real estate, and that they were not ready to divulge that information at present.” Later in that OS, another citizen voiced concern that it was beginning to sound like this project was a “fait accompli”, and ironically disclosed the very facts which the Selectmen were not yet prepared to divulge publicly, as well as the fact that the people of Sterling could [still] vote this project up or down. The response by one of the Selectmen was “Don’t you think Nestle knows that?”  Neither his comment, or the specifics of this citizen’s comments, was included in the OS minutes. Instead, the minutes contain an inaccurate summary of the exchange that occurred, and does not divulge what the Selectmen sought to keep secret. Exactly what was said at this meeting cannot be confirmed, because the Town’s copy of the tape of this meeting did not, for reasons unknown, record the sound.

QUESTION:    Given the above, would it be accurate to conclude that  the Selectmen did not want this information divulged to the people of Sterling at this time? If so, why? The perceived need for secrecy was so pervasive for this project, that the Selectmen never even disclosed that any of the ES meetings concerning real estate had to do with Nestle.  Under the circumstances, would it also be accurate to conclude that the Selectmen considered approaches concerning this project that would not have provided the people of Sterling with the opportunity or ability to stop it? Please explain to the people, why all the secrecy, and what was going  on

FINAL QUESTION: Please explain to the people of Sterling (a) why you conducted yourselves the way you did with respect to this project; (b)  whether you believe you made any mistakes or used poor judgment as far as the decisions you made, actions you took,  and how you conducted yourselves with respect to the people of this Town and Nestle; and (c) what you would do differently, if given the opportunity and choice?.